Writings on Common Law and Hereditary Right (review)

Thomas Hobbes wrote three classics or near classics of political philosophy, Leviathan, De Cive, and the Elements of Law, Natural and Politic. He also wrote Dialogue between a Philosopher and a Student, of the Common Laws of England. Not only is the Dialogue, written somewhere between 1668 and 1675, less rigorous than the earlier writings, it is, horribile dictu, boring for long stretches. This is partially due to his intention to prove that Edward Coke, the most renowned scholar of English Common Law, "understood not his Books of Common-Law" (120; also, e.g., 132), partially due to the complexity of England's court system, and partially due to its bizarre laws (e.g., 121–24). After talking about many of the courts, the Lawyer [the 'Student' of the title] says, "Then there is the Court of—," at which point the Philosopher interrupts him with "Let us stop here," in order to turn to a discussion of "Crimes Capital." While I was reading some of the English laws discussed in the Dialogue, Mr. Bumble's words besieged my brain, "If the law supposes that, the law is a ass." Sometimes the tedium is relieved by humor, occasionally unintended. Hobbes believes that a good judge does not need to be well versed in the statutes of his jurisdiction (67). Beneath all the dross is Hobbes's main point that all the judges are nothing more than the king's agents.

The Dialogue has in effect eight sections: "Of the Law of Reason" (8–13), "Of Soveraign Power" (13–40), "Of Courts (41–68), "Of Crimes Capital" (68–91), "Of Heresie" (91–103), "Of Praemunire" (103–13), "Of Punishments" (113–34), and an untitled one on property (134–46).

The Dialogue may be consulted selectively for the purpose of comparing his treatments of some topics with the corresponding topics in his other political works: "committing" (authorizing) versus "transferring" (54–55), crime (41), equity (60–61, 66–68), heresy (91–103, 111–12), iniquity (30), justice (34), law (31), law of reason (8–12, 14–15, 25–26, 30–31, 63–64, 113–14), property (135–37, 141), punishment (113–16), sovereignty (137–39), sovereign person (139), and suicide (85). Alan Cromartie almost always provides the relevant cross-references.

In the General Introduction, Cromartie tries to establish as precisely as possible when the Dialogue was written. He goes on too long with too little payoff. There is simply not enough information about its composition to give a precise date. There's no manuscript attributable to Hobbes, and the only relevant edition is the first, published posthumously in 1681. It's doubtful whether a precise date would affect anyone's understanding of Hobbes. Cromartie also exaggerates the importance of the section, "Of Heresy." The introduction would have been more helpful if it had described the English legal system at greater length and more systematically, and had presupposed less in his analyses of the issues raised in the Dialogue. A glossary of terms also would have been helpful.

Hobbes's attitude towards the manuscript was ambivalent. He occasionally permitted people to read the manuscript that he had given to his publisher, William Crooke, but would not agree to let it be printed while he was alive.

Hobbes has some nice things to say about Bishops, if he is not being sarcastic: "The Bishops are the most able and rational Men, and obliged by their profession to Study Equity, because it is the Law of God, and are therefore capable of being Judges in a Court of Equity" (66), and "the Lords Spiritual . . . are the most versed in the Examination of Equity, and Cases of Conscience . . . [and are] the best able to Judge of matters of Reason" (86; cf. 95).

This volume also contains a short manuscript, about 500 words, written by Hobbes in about 1679, with a Historical Introduction by Quentin Skinner, who writes a clear and succinct narrative of the Exclusion Crisis. Concerning...